IN THE SUPREME COURT OF THE STATE OF MONTANA
2004 MT 288
STATE OF MONTANA,
Plaintiff and Respondent,
TODD JOHN MARTIN,
Defendant and Appellant.
District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DC-03-0112,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
Gary E. Wilcox, Michael Law Firm, Billings, Montana
Hon. Mike McGrath, Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney; Christopher Morris, Deputy
County Attorney, Billings, Montana
Submitted on Briefs: July 14, 2004
Decided: October 19, 2004
Justice Jim Regnier delivered the Opinion of the Court.
Todd John Martin (Martin) appeals from an order of the Thirteenth Judicial District
Court, Yellowstone County, entered October 14, 2003, denying Martin’s motion to withdraw
his guilty plea. We affirm.
We address the following issues on appeal:
1. Did the District Court err in denying Martin’s motion to withdraw his guilty plea?
2. Did Martin receive effective assistance of counsel?
On February 9, 2003, Martin’s neighbor, Errol Fisher (Fisher), phoned 911 and
reported Martin had stabbed a female the previous night and that Martin would not let her
leave the apartment to seek medical treatment. When Billings police officers arrived at the
apartment building, they located the victim, Carolyn Smith (Smith), in her bedroom. When
asked if she had been stabbed, she lifted up her shirt to reveal blood and what appeared to
be a wound on her left upper back. Officers found Martin in the hallway of the apartment
building. A black folding knife, which appeared to have blood on the blade, was located in
Martin’s front right pocket. A small plastic bag of what appeared to be marijuana was also
removed from Martin’s pocket.
Officers transported Martin to the Yellowstone County Detention Center, where
officers collected Martin’s pants and slippers because they appeared to have blood on them.
Once read his Miranda rights, Martin stated Smith had been stabbed outside of the residence,
he was not present during the incident, and Smith had given him the knife when she returned
to the apartment.
Fisher provided a statement to police on February 9, 2003, stating that Martin told
him he had stabbed Smith with a pocketknife, that Martin showed him how deep the knife
went into Smith’s body, and that Martin asked him not to call for assistance because Martin
would go back to prison. Fisher gave a follow up statement to police on May 27, 2003.
On February 12, 2003, Martin was charged with assault with a weapon, a felony, in
violation of § 45-5-213(1)(a), and criminal possession of dangerous drugs, a misdemeanor,
in violation of § 45-9-102(2). On February 13, 2003, the State filed a notice of intent to have
Martin designated a persistent felony offender, based on a 1996 conviction of partner family
On June 6, 2003, Martin moved to withdraw his plea of not guilty to the felony
assault charge and enter a guilty plea. Following appropriate inquiry, the court accepted his
plea. Martin accepted a plea agreement which provided he would be sentenced for five years
to the Department of Corrections, with two years suspended, and the State would dismiss the
persistent felony offender designation. Two days before the original sentencing date, a
woman claiming to be Smith went to the Public Defender’s Office and gave a statement that
Martin was not the person who committed the assault.
On September 15, 2003, Martin filed a motion to withdraw his guilty plea. On
October 8, 2003, a hearing on the motion was held. On October 14, 2003, the court issued
its order denying Martin’s motion to withdraw his guilty plea. On October 22, 2003, Martin
was sentenced pursuant to the plea agreement. Martin now appeals from the court’s denial
of his motion to withdraw his guilty plea.
STANDARD OF REVIEW
We review a district court’s denial of a defendant’s motion to withdraw a guilty plea
to determine whether the court abused its discretion. State v. Schaff, 1998 MT 104, ¶ 16,
288 Mont. 421, ¶ 16, 958 P.2d 682, ¶ 16; State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d
175, 177. No categorical standard exists as to how a district court must address a request to
withdraw a guilty plea; rather, each case must be considered in light of its unique record.
Mallak v. State, 2002 MT 35, ¶ 16, 308 Mont. 314, ¶ 16, 42 P.3d 794, ¶ 16.
1. Did the District Court err in denying Martin’s motion to withdraw his guilty
Section 46-16-105, MCA, provides that at any time before or after a judgment, the
court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not
This Court has established three factors to be considered when
determining whether “good cause” under § 46-16-105, MCA, exists to permit the withdrawal
of a guilty plea: 1) the adequacy of the district court’s interrogation as to the defendant’s
understanding of his plea; 2) the promptness of the motion to withdraw the prior plea; and
3) the fact that the defendant’s plea was apparently the result of a plea bargain in which the
guilty plea was given in exchange for dismissal of another charge. State v. Graham, 2002
MT 237, ¶ 16, 311 Mont. 500, ¶ 16, 57 P.3d 54, ¶ 16 (citing Mallak, ¶ 17; State v. Knox,
2001 MT 232, ¶ 11, 307 Mont. 1, ¶ 11, 36 P.3d 383, ¶ 11; State v. Bowley (1997), 282 Mont.
298, 304, 938 P.2d 592, 595). Consideration of the third factor is intended to prevent the
parties to a plea agreement, either a defendant or the State, from escaping the obligations of
the plea agreement after accepting its benefits. Schaff, ¶ 28.
On appeal, Martin does not dispute the first factor–the adequacy of the District
Court’s interrogation of him when he changed his plea. The second factor is not in dispute
because the timeliness of Martin’s motion is not challenged. Further, promptness of a
motion, alone, does not outweigh the other two factors. State v. White, 2004 MT 103, ¶ 18,
321 Mont. 45, ¶ 18, 88 P.3d 1258, ¶ 18 (quoting State v. Keys, 1999 MT 10, ¶ 21, 293
Mont. 81, ¶ 21, 973 P.2d 812, ¶ 21). Therefore, the only factor argued on appeal is the third.
In the District Court proceedings, Martin’s counsel conceded this factor to the State,
however, on appeal Martin contends this was not a concession, but merely an
acknowledgment the State had a valid-sounding argument.
It has long been the rule in this Court that we will not fault a district court for a ruling
in which the appellant acquiesced or participated in. State v. Gardner, 2003 MT 338, ¶ 44,
318 Mont. 436, ¶ 44, 80 P.3d 1262, ¶ 44 (citing In re Marriage of Smith (1990), 242 Mont.
495, 501, 791 P.2d 1373, 1377). Acquiescence in error takes away the right of objecting to
it. Gardner, ¶ 44 (citing State v. LaDue, 2001 MT 47, ¶ 23, 304 Mont. 288, ¶ 23, 20 P.3d
775, ¶ 23; § 1-3-207, MCA).
A review of the record reveals Martin’s counsel did, in fact, concede this element to
the State in the District Court proceedings. Martin’s acquiescence constitutes a waiver of
his right to assert error regarding this factor on appeal. Thus, we decline to consider it.
Last, Martin states the fundamental purpose in allowing a withdrawal of a plea is to
prevent the possibility of convicting an innocent person. Knox, ¶ 10 (citations omitted);
State v. Arledge (1987), 228 Mont. 225, 232, 741 P.2d 781, 785. He claims Smith’s
statement to the public defender exonerating Martin was reason enough for the District Court
to grant his motion. However, considering Smith did not testify at the hearing, the identity
of the woman who made the statement to the public defender was not confirmed as Smith,
the birth date she provided was not correct, and Fisher’s statement to police incriminating
Martin, we cannot say the District Court abused its discretion when it denied Martin’s
motion to withdraw his guilty plea.
2. Did Martin receive effective assistance of counsel?
Since this Court finds Martin is precluded from arguing on appeal the validity of the
third “good cause” factor, Martin alternatively contends that his counsel was ineffective
when he conceded the third “good cause” factor in the District Court proceedings and failed
to preserve the issue for appeal.
The State argues Martin’s counsel’s performance cannot be deficient because the
issue Martin claims he failed to raise lacks merit. The State contends the plea agreement in
this case benefitted Martin and therefore satisfied the third “good cause” factor. Relying on
our recent decision in White, where we stated that a plea agreement between a defendant and
the State “is a contract which is subject to contract law standards,” the State argues it was
bound by the agreement from the moment it was entered into. White, ¶ 25 (citation omitted).
Martin does not dispute he received a benefit under the plea agreement, but contends
at the time of the District Court’s denial of his motion to withdraw his guilty plea, he had not
yet received the benefit of the plea agreement because the misdemeanor charge had not been
dropped, the persistent felony offender notice had not been withdrawn, and he had not been
Montana has adopted the two-pronged test set forth in Strickland v. Washington
(1984), 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, in determining whether a defendant
received effective assistance of counsel. A defendant must show his counsel’s performance
was deficient and that this deficient performance prejudiced him. State v. Osterloth, 2000
MT 129, ¶ 30, 299 Mont. 517, ¶ 30, 1 P.3d 946, ¶ 30.
Martin’s argument he had not received the benefit of the plea bargain at the time of
the District Court’s denial of his motion to withdraw his guilty plea is not persuasive. We
have rejected similar arguments before, holding plea agreements are enforceable from the
moment they are entered into with both sides receiving the benefit of their bargain from the
moment of signing. White, ¶ 26; Schaff, ¶ 31. Martin accepted the benefits of the plea
bargain immediately upon signing it June 6, 2003. Thus, the State established the third
“good cause” factor.
Since the third “good cause” factor weighed in favor of the State, Martin’s counsel
did not err when he conceded it to the State in the District Court proceedings. A counsel’s
performance cannot be deficient when the issue counsel failed to raise lacks merit.
Osterloth, ¶ 32; State v. Hildreth (1994), 267 Mont. 423, 433, 884 P.2d 771, 777. Martin’s
counsel’s performance was not deficient; therefore, we hold Martin received effective
assistance of counsel.
/S/ JIM REGNIER
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ JIM RICE